41 Pa. Super. 162 | Pa. Super. Ct. | 1909
Opinion by
This action was brought by Michael McArdle to recover damages for the death of his wife alleged to have been occasioned by the negligence of the defendant. Before trial Michael McArdle
The action in such a case is properly brought in the name of the surviving husband alone, but under the statute the entire sum recovered is not always to be retained by him in his own right, and in order that it may appear who are entitled to participate in the damages recovered it is required that the statement of claim shall state who they are. But as an amendment of the statement of claim in this particular does not change the cause of action, it may be made after the statute of limitations has ran, Huntingdon & Broad Top R. R., etc., Co. v. Decker, 84 Pa. 419, and even in the appellate court: Hughes v. Williams, 17 Pa. Superior Ct. 229. As the evidence given on the trial showed that there were children entitled to participate in the distribution of the sum to be recovered, and the sole question raised on the plaintiff's appeal is as to the measure of damages, the amendment made after verdict, setting forth “who are entitled in such action,” as required by the second section of the Act of April 26,1855, P. L. 309, may be regarded as if made on or before the trial.
The general question raised by the assignments of error is as to the effect upon the measure of damages of the death of the husband before trial. Whenever death has been occasioned by unlawful violence or negligence, the persons entitled to recover damages, if no action was brought by the person injured, are
There is one other question to be noticed before discussing the facts, and that relates to the mode of carrying on the suit brought by the surviving husband or wife who dies before the action is brought to trial. In Fitzgerald v. Edison Electric Illuminating Co., 207 Pa. 118, where the action was brought by the widow in her own behalf and that of her son, they being the only persons entitled to recover, and the widow having died pending the litigation, her administrator was substituted as plaintiff. The court was requested to charge that the jury could assess only such damages as the widow suffered by reason of the loss of her husband from the time of his death to the time of her death. The point was refused upon the ground that the action was for the benefit of the child as well as of the widow, and upon appeal the assignment of error bringing this ruling into question was' overruled. The case is directly in point.
In the present case there was not only the presumption, but ample affirmative evidence of the existence of the family rela
But was the measure of damage precisely the same as if Michael McArdle had been living at the time of the trial? This question is raised by the first assignment of error and is not free from difficulty. It would be less difficult if the jury had power to apportion their verdict among the various parties entitled. But under our statutes relating to such actions they have not that power. They must estimate the value of the life to the surviving members of the family and render a verdict for a lump sum which “ shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors.” To hold that this lump sum shall be less, if the husband who brought the action dies pending the litigation, and after recovery of the same shall be apportioned as directed by the act, would not accomplish the result, so far as the children are concerned, which the act plainly intends. Nor is it clear that if the damages are computed as if the husband had not died, the result will be to compel the defendant to pay more, and to give the husband’s estate more than the acts contemplate. While the case of Emery v. Philadelphia, 208 Pa. 492, does not rule the exact point, it was decided upon a principle which is pertinent. That was an action by a wife for the death of her husband. It was contended that it was not sufficient to prove the decedent’s expectancy of life without proving also the plaintiff’s expectancy of life. According to this construction the recovery in the present case, if the husband had been living at the time of trial, would have been
The assignments of error are sustained, the judgment is reversed and a venire facias de novo is awarded.